Michael S. Greenhttps://works.bepress.com/michael_green/Recent works by Michael S. Greenen-usCopyright (c) 2018 All rights reserved.Mon, 19 Mar 2018 15:18:15 -00003600Horizontal Erie and the Presumption of Forum Lawhttps://works.bepress.com/michael_green/22/According to Erie Railroad v. Tompkins and its progeny, a federalcourt interpreting state law must decide as the state’s supremecourt would. In this Article, I argue that a state court interpretingthe law of a sister state is subject to the same obligation. It mustdecide as the sister state’s supreme court would.
Horizontal Erie is such a plausible idea that one might think it isalready established law. But the Supreme Court has in fact givenstate courts significant freedom to misinterpret sister-state law. Andstate courts have taken advantage of this freedom, by routinely presumingthat the law of a sister state is the same as their own—oftenin the face of substantial evidence that the sister state’s supremecourt would decide differently. This presumption of similarity to forumlaw is particularly significant in nationwide class actions. Aclass will be certified, despite the fact that many states’ laws applyto the plaintiffs’ actions, on the ground that the defendant has failedto provide enough evidence to overcome the presumption that sisterstates’ laws are the same as the forum’s. I argue that this vestige ofSwift v. Tyson needs to end.
Applying horizontal Erie to state courts is also essential to preservingfederal courts’ obligations under vertical Erie. If New York statecourts presume that unsettled Pennsylvania law is the same as theirown while federal courts in New York do their best to decide as thePennsylvania Supreme Court would, the result will be the forumshopping and inequitable administration of the laws that are forbiddenunder Erie and its progeny. As a result, federal courts haveoften held that they too must employ the presumption of similarityto forum-state law, despite its conflict with their obligations undervertical Erie. Applying horizontal Erie to state courts solves thispuzzle.https://works.bepress.com/michael_green/22/No Subject AreaNietzsche’s Place in Nineteenth Century German Philosophyhttps://works.bepress.com/michael_green/16/Michael Steven Greenhttps://works.bepress.com/michael_green/16/No Subject AreaChoice of Law as General Common Law: A Reply to Professor Brilmayerhttps://works.bepress.com/michael_green/5/https://works.bepress.com/michael_green/5/No Subject AreaLaw's Dark Matterhttps://works.bepress.com/michael_green/10/https://works.bepress.com/michael_green/10/No Subject AreaLegal Realism as Theory of Lawhttps://works.bepress.com/michael_green/21/https://works.bepress.com/michael_green/21/No Subject AreaErie’s Suppressed Premisehttps://works.bepress.com/michael_green/14/https://works.bepress.com/michael_green/14/No Subject AreaIntroductory Remarks: Explaining Tort Lawhttps://works.bepress.com/michael_green/19/https://works.bepress.com/michael_green/19/No Subject AreaThe Privilege's Last Stand: The Privilege Against Self-Incrimination and the Right to Rebel Against the Statehttps://works.bepress.com/michael_green/8/https://works.bepress.com/michael_green/8/No Subject AreaAnarchic Constitutional Rights (Program)https://works.bepress.com/michael_green/6/https://works.bepress.com/michael_green/6/No Subject AreaThe Paradox of Auxiliary Rights: The Privilege Against Self-Incrimination and the Right to Keep and Bear Armshttps://works.bepress.com/michael_green/18/According to Locke's theory of the social contract, which was widely accepted by the Founders, political authority is limited by those natural moral rights that individuals reserve against the government. In this Article, I argue that Locke's theory generates paradoxical conclusions concerning the government's authority over civil disobedients, that is, people who resist the government because they believe it is violating reserved moral rights. If the government lacks the authority to compel the civil disobedient to abide by its laws, the result is anarchism: The limits on governmental authority are whatever each individual says they are. If the government has this authority, the result is authoritarianism: The limits on governmental authority are whatever the government says they are. Both conclusions are unacceptable. Because of the Lockean paradox, auxiliary constitutional rights, whose purpose is to protect civil disobedience, are likewise paradoxical. I argue that the Fifth Amendment privilege against self-incrimination and the Second Amendment right to keep and bear arms are examples of auxiliary rights, and I use the Lockean paradox to explain the intractable nature of the debates over whether these two rights provide anything of moral value. To their critics, these rights are anarchistic. All they do is give individuals the power to frustrate the government's legitimate attempts to protect citizens against mutually-imposed risks of violence. To their supporters, these rights are a bulwark against authoritarianism. To deny citizens the power to resist the government is to accept that the only views about the limits of political authority that matter are the government's. These disagreements cannot be resolved, because both sides are right. Supporters of these rights are anarchistic and their critics are authoritarian. As long as we continue to accept the Founders' Lockean view that governmental authority is limited by reserved moral rights, we will never be able to reject or accept these two constitutional rights. The Lockean paradox also explains the difficulties that courts and academics have experienced delineating the scope of these rights in a conceptually satisfying manner. Here too I argue that these problems cannot be overcome. The limits that are placed on these rights will always be arbitrary and ad hoc.https://works.bepress.com/michael_green/18/No Subject Area